Ex Parte Kucharski et alDownload PDFPatent Trial and Appeal BoardDec 8, 201613571565 (P.T.A.B. Dec. 8, 2016) Copy Citation United States Patent and Trademark Office UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O.Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/571,565 08/10/2012 Joseph F. Kucharski 83238155 4250 28395 7590 12/12/2016 RROOKS KTTSHMAN P C /FfTET EXAMINER 1000 TOWN CENTER TRIVEDI, ATUL 22ND FLOOR SOUTHFIELD, MI 48075-1238 ART UNIT PAPER NUMBER 3667 NOTIFICATION DATE DELIVERY MODE 12/12/2016 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): docketing @brookskushman.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOSEPH F. KUCHARSKI, YUJI FUJII, ALEXANDER O’CONNOR GIBSON, NIMROD KAPAS, GREGORY MICHAEL PIETRON, and DIANA YANAKIEV Appeal 2014-009197 Application 13/571,565 Technology Center 3600 Before CHARLES N. GREENHUT, ERIC C. JESCHKE, and BRENT M. DOUGAL, Administrative Patent Judges. JESCHKE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Joseph F. Kucharski et al. (“Appellants”) seek review under 35 U.S.C. § 134(a) of the Examiner’s decision, as set forth in the Final Office Action dated November 5, 2013 (“Final Act.”), rejecting claims 1—20 under 35 U.S.C. § 102(b) as anticipated by Anderson (US 2009/0319136 Al, published Dec. 24, 2009).1 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 Appellants identify Ford Global Technologies, LLC as the real party in interest. Appeal Br. 1. Appeal 2014-009197 Application 13/571,565 BACKGROUND The disclosed subject matter “relates to a system and method for controlling a vehicle powertrain.” Spec. 11. Claims 1, 8, and 17 are independent. Claim 1 is reproduced below, with emphasis added: 1. A method for controlling a vehicle powertrain including an engine, comprising: automatically controlling at least one powertrain function other than engine torque based on a measured torque related to actual engine torque and a predetermined torque range that is based on a first engine torque estimate. DISCUSSION A. Claims 1—7 and 17—20 Independent claim 1 recites the step of “automatically controlling at least one powertrain function other than engine torque based on,” inter alia, “a predetermined torque range that is based on a first engine torque estimate.” Appeal Br., Claims App. 1. Independent claim 17 recites “a controller configured to automatically control at least one powertrain function other than engine torque based on,” inter alia, “a predetermined torque range that is based on a first engine torque estimate.” Id. at 3.2 To address the “automatic control” limitations, the Examiner cited paragraph 31 of Anderson and stated “with control system 32 of Figure 3.” Final Act. 3 (claim 1), 6 (claim 17). To address the “predetermined torque range” 2 We will refer to the first of the quoted limitations for each claim, collectively, as the “automatic control” limitations. We will refer to the second of the quoted limitations for each claim, collectively, as the “predetermined torque range” limitations. 2 Appeal 2014-009197 Application 13/571,565 limitations, the Examiner cited paragraph 30 and stated “based on a torque load limit.” Id. at 3, 6. Appellants argue that “there is nothing cited by the Examiner or explained in the rejections as to how the reference expressly or inherently describes how the control is . . . based on ‘a predetermined torque range that is based on a first engine torque estimate,’ as expressly required by claim 1.” Appeal Br. 4. Appellants rely on the same argument for claim 17. See id. at 7 (“[CJlaim 17 claims that the controller effects control also based on ‘a predetermined torque range that is based on a first engine torque estimate, ’ but the Examiner has not shown where these elements are expressly or inherently described by the reference.”). The Examiner responds: Anderson teaches that the control system may determine a torque load limit based on measurements from sensors or other devices (1 31). Anderson also teaches an error scenario in which the control system does not take consumed torque into account when determining a torque load limit (| 33). Based on this teaching, a person of skill in the art would understand that under normal operating circumstances, the control system of Anderson would determine a torque range, from a torque range based on measured values from sensors. Ans. 2—3.3 The record here does not support the Examiner’s findings that Anderson satisfies the “predetermined torque range” limitations in claims 1 and 17. See Spec. 124 (providing background on these limitations). 3 Although the Examiner addresses these findings to the “predetermined torque range” limitation in claim 17, given the similarity of the claim language, we consider these findings to also apply to the “predetermined torque range” limitation in claim 1. 3 Appeal 2014-009197 Application 13/571,565 As an initial matter, we agree with Appellants that the Examiner relies on the teaching that control system 32 is “configured to determine, set, and/or adjust a torque load limit 42” to address the “automatic control” limitations. See Anderson 1314; Appeal Br. 4; Final Act. 2. The Examiner has not shown, however, how the function of determining, setting, and/or adjusting torque load limit 42 is based, in part, on a “predetermined torque range that is based on a first engine torque estimate,” as required by claims 1 and 17. Here, the Examiner has not identified, with sufficient specificity (in the Final Office Action or the Answer), either the “predetermined torque range” or the “first engine torque estimate” allegedly disclosed in Anderson. To the extent the Examiner relies on torque load limit 42 (see Anderson || 30, 31) as the “predetermined torque range,” we identify two errors. First, the Examiner has not shown that torque load limit 42 is “predetermined.”5 Second, given that the Examiner relies on control system 32 to address the “automatic control” limitations, the Examiner has not demonstrated how the function of determining, setting, and/or adjusting torque load limit 42 could be based, in part, on torque load limit 42 itself. As to the Examiner’s reliance on paragraph 33 of Anderson, we agree with Appellants that the “‘error scenario’ as described by the Examiner does not expressly or inherently describe a controller that is based on a 4 We omit boldface from all quotations from Anderson. 5 Although the Specification does not necessarily provide the broadest reasonable construction of “predetermined,” in a discussion of one embodiment, the Specification indicates that “predetermined” includes a manufacturer providing the “torque range” data. See, e.g., Spec. 124 (“This torque envelope may be based on data provided, for example, by an engine manufacturer based on known variability of production components.”). 4 Appeal 2014-009197 Application 13/571,565 predetermined torque range, which itself is based on a first engine torque estimate.” Reply Br. 4. For these reasons, we do not sustain the rejection of independent claims 1 and 17, and also do not sustain the rejection of claims 2—7 (which depend from claim 1) or claims 18—20 (which depend from claim 17). B. Claims 8—16 Independent claim 8 recites the step of “automatically controlling at least one powertrain function other than engine torque based on,” inter alia, “a torque envelope.” Appeal Br., Claims App. 2 (emphasis added). To address the “automatically controlling” limitation, the Examiner cited paragraph 31 of Anderson and stated “with control system 32 of Figure 3.” Final Act. 4. To address the “torque envelope” limitation, the Examiner cited paragraph 49, and stated “needs a change to stay in an acceptable range.” Id. Appellants argue that “the acceptable range described in Paragraph 0049 is an acceptable speed range” and also that, in paragraph 49, Anderson “specifically states that the goal is to ‘keep torque producing system 21 operating at a target speed and/or in an acceptable range.’” Appeal Br. 6. Appellants state: “[tjhus, the range referred to by the Examiner does not equate to a ‘torque envelope’ as expressly claimed in claim 8.” Id. 5 Appeal 2014-009197 Application 13/571,565 The Examiner responds: Anderson states that the engine control system may measure a number of different operational characteristics (f 31), among them consumed torque 33). Anderson further teaches that the control system may include a torque load control feature that regulates torque within the engine (f 32). Anderson also teaches that the controller may send torque limit signals to other command modules (f 37). Ans. 2. The record here does not support the Examiner’s findings that Anderson satisfies the “torque envelope” limitation. As an initial matter, we view the Examiner as again relying on the teaching that control system 32 is “configured to determine, set, and/or adjust a torque load limit 42” to address the “automatically controlling” limitation. See Anderson 131. The Examiner has not shown, however, how the function of determining, setting, and/or adjusting torque load limit 42 is based, in part, on a “torque envelope,” as required by claim 8. Here, the Examiner has not identified, with sufficient specificity (in the Final Office Action or the Answer), the “torque envelope” allegedly disclosed in Anderson. To the extent the Examiner relies on torque load limit 42 (see Anderson H 30, 31) as the “torque envelope,” the Examiner has not demonstrated how the function of determining, setting, and/or adjusting torque load limit 42 could be based, in part, on torque load limit 42 itself. As to paragraph 49, we agree with Appellants (Appeal Br. 6) that the “acceptable range” disclosed relates to rotational speed, not torque. For these reasons, we do not sustain the rejection of claim 8, or the rejection of claims 9—16, which depend from claim 8. 6 Appeal 2014-009197 Application 13/571,565 DECISION We REVERSE the decision to reject claims 1—20. REVERSED 7 Copy with citationCopy as parenthetical citation